ASHOK KUMAR KHURANA Vs. LOKESHWER NATH GULATI

JUDGEMENT

(1.) This appeal has been preferred by the owner of a car bearing No.DL-1C/D-7676, involved in an accident and causing injuries to a two-wheeler driver. The main contention of the appellant is that he had given his car for repairing to a garage owner. He was not in control of the car at the time of accident and the garage owner had sent one of his boys for trial of the car, who was driving the car at the time of accident. The appellant was not aware if the car had been taken for trial. The Tribunal wrongly disbelieved the plea of the appellant on the ground that no bill for repairs was proved and the garage owner was not examined.

(2.) Brief facts relevant for the purpose of deciding this appeal are that on 18th September, 2004 at about 11:30 a.m., the aforesaid car owned by the appellant being driven by one Sh. Umesh Kumar, respondent No.2 herein, caused accident at Burari Road in front of Om Mandir, Dhaka Village resulting into injuries to the claimant who was removed to hospital. The claimant filed claim petition making Sh. Umesh Kumar, driver of the car as respondent No.1, present appellant as respondent No.2 and insurance company as respondent No.

(3.) In the written statement, the appellant did take a stand that he had left his car with the garage for repair and respondent No.2 herein was not his driver. No application was made by the appellant before the Tribunal for impleadment of garage owner as a necessary party. Neither any bill of repairs was proved nor was garage owner summoned in the witness box to support the case of the appellant. 3. Section 106 of the Evidence Act lays down in categorical terms that a fact in the special knowledge of a person is to be proved by him. The fact that the car was handed over by the appellant to the garage owner was to be proved by him and not by the claimant or insurance company. No fault can be found with the award of the Tribunal in view of the fact that the appellant, except making a self-serving statement of leaving the car to garage made no effort to prove that the car was under the control of the garage owner. It was for the appellant to prove that not he but the garage owner was the tortfeasor and liable to pay the compensation or that the insurance company was to discharge the liability in terms of the award without a qualification.